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The Arbitration Fairness Act, a.k.a. H.R. 1020, would make predispute arbitration agreements covering employment and consumer disputes unenforceable. Michael Fox points us to Public Citizen's Fair Arbitration Now (FAN) Coalition and Blog, and suggests that odds favor passage. Does anyone have any feel for the likelihood of passage? If you do, please add a comment.

President Obama yesterday nominated Craig Becker and Mark Pearce to fill vacancies on the National Labor Relations Board. Their bios are below. Here's the press release. Nice scoop, Mitch!

Craig Becker currently serves as Associate General Counsel to both the Service Employees International Union and the American Federation of Labor & Congress of Industrial Organizations. He graduated summa cum laude from Yale College in 1978 and received his J.D. in 1981 from Yale Law School where he was an Editor of the Yale Law Journal. After law school he clerked for the Honorable Donald P. Lay, Chief Judge of the United States Court of Appeals for the Eighth Circuit. For the past 27 years, he has practiced and taught labor law. He was a Professor of Law at the UCLA School of Law between 1989 and 1994 and has also taught at the University of Chicago and Georgetown Law Schools. He has published numerous articles on labor and employment law in scholarly journals, including the Harvard Law Review and Chicago Law Review, and has argued labor and employment cases in virtually every federal court of appeals and before the United States Supreme Court.

Mark Gaston Pearce (photo above) has been a labor lawyer for his entire career. He is one of the founding partners of the Buffalo, New York law firm of Creighton, Pearce, Johnsen & Giroux where he practices union side labor and employment law before state and federal courts and agencies including the N.Y.S. Public Employment Relations Board, Equal Employment Opportunity Commission, the U.S. Department of Labor, and the National Labor Relations Board. Pearce in 2008 was appointed by the NYS Governor to serve as a Board Member on the New York State Industrial Board of Appeals, an independent quasi-judicial agency responsible for review of certain rulings and compliance orders of the NYS Department of Labor in matters including wage and hour law. Pearce has taught several courses in the labor studies program at Cornell University’s School of Industrial Labor Relations Extension. He is a Fellow in the College of Labor and Employment Lawyers. Prior to 2002, Pearce practiced union side labor law and employment law at Lipsitz, Green, Fahringer, Roll, Salisbury & Cambria LLP. From 1979 to 1994, he was an attorney and District Trial Specialist for the NLRB in Buffalo, NY. Pearce received his J.D. from State University of New York, and his B.A. from Cornell University.

The New York Times is reporting that the Treasury Department is preparing for a bankruptcy filing by Chrysler. Nothing is certain yet, but signals seem to indicate that Fiat will take over a substantial (although not majority) stake in the carmaker as it enters bankruptcy. There also appears to be an agreement with the UAW; according to the Times:

The U.A.W., Chrysler and Treasury have reached agreements in
principle that would protect workers’ benefits, these people said, and
a similar agreement is expected to be reached as soon as this weekend
with the Canadian Automobile Workers’ union. . . .

People close to the talks said
Wednesday that the U.A.W. had tentatively agreed to accept Chrysler
stock to finance half of the company’s $10.6 billion obligation to the
health care trust. The balance would be paid in cash over the next
decade. That money presumably could come from either the Treasury, or
from Chrysler’s profits, once it emerges from bankruptcy protection.

Chrysler
has a $9.3 billion pension shortfall, or 34 percent of its total
liability, according to the Pension Benefit Guaranty Corporation. The
agency said earlier this month that it would assume $2 billion of the
shortfall in the event Chrysler terminates its pension plans.

If
that happened, retirees would receive sharply lower benefits than they
normally would expect. However, Chrysler is not obligated to terminate
its pension plans while in bankruptcy, particularly if it received
federal assistance to fund them.

The economic crisis, which has claimed more than 5 million jobs since the recession began, did not strike the entire country at once. A map of employment gains or losses by county tells the story of how those job losses first struck in the most vulnerable regions and then spread rapidly to the rest of the country. As early as August 2007, for example—several months before the recession officially began—jobs were already on the decline in southwest Florida; Orange County, Calif.; much of New Jersey; and Detroit, while other areas of the country remained on the uptick. Using the Labor Department's local area unemployment statistics, Slate presents the recession as told by unemployment numbers for each county in America.

Scroll down to the map, click "start", then click the green button. Hat tip: Carol Furnish.

Let me just apologize in advance for my inability to make this analysis concise. I've had a chance to read the oral argument transcript in the Ricci v. DeStefano case and to think about it in more detail. So here goes.

Counsel for the petitioners began by framing the city’s actions as a racial classification and arguing that to guard against racial favoritism, the city had to have a strong basis in evidence to conclude that the test was invalid and decide not to use it. On questioning from Justice Stevens, counsel confirmed that the question (of whether the city’s decision was race-based) was a question of law, and not a question of fact. Justice Ginsburg followed up with a series of hypotheticals about disparate impact, potentially pinpointing the real difficulty with this line of argument–and possibly with the way we think about decisionmaking and discrimination at all.

Motive is ordinarily a question of fact, but this fact can be framed in more than one way. What does it mean to say that the city actors saw the races of those who passed and at what rank, grew concerned about that result, and discarded the results? The question of why they were concerned seems very difficult to tease out, but decisive. If they grew concerned because they feared that the test had a racially disproportionate impact and thought that some other method that assessed who would perform well in the job but without that impact was available, that would seem not to be a racial classification in the equal protection sense–the use of race as a proxy for desert. If they grew concerned that they would not be able to promote enough firefighters of the race that did poorly and desired to promote more from that race without regard to qualifications, that would seem to be a racial classification.

These questions get hidden by shorthand. For example, petitioner’s counsel suggested that if the city actors had been concerned about an “improper test,” there wouldn’t be a problem, but equated “improper test” to “unnecessary . . . not job related and could clearly be done by an identifiable alternative.” But that’s not what will make a test “improper” in disparate impact terms. A test can be job related but still cause an actionable disparate impact if there are other valid alternatives that would cause less of an adverse impact on the identified group. So terms like “validity” and “job-related” are relevant, but don’t by themselves answer the disparate impact question.

Justice Souter expressed concern that the petitioners’ position left the city in an impossible position, violating Title VII no matter what action it takes. Justice Kennedy also picked up on this thread and on Justice Ginsburg’s line of questions, asking whether a city would discriminate if it had a choice of two tests, one of which it knew had a statistical disparate impact and the other of which did not by choosing the one that did not. There was significant discussion about whether every instance of race consciousness was by definition race discrimination.

In another instance of using language that seemed to confuse rather than illuminate the issues, counsel for the petitioners said that purely unintentional discrimination should not be considered a compelling interest to overcome intentional discrimination and then later suggested that a disparate impact could be caused by unintentional discrimination or no discrimination at all.

In the end, petitioners’ argument seemed to boil down to the fact that because the firefighters had all taken the test, nullifying the results impaired their dignity. Justice Kennedy seemed amenable to that argument, suggesting in the argument by counsel for the U.S. (which argued as an amicus on behalf of the legal position of respondent, but arguing for remand on the question of whether the asserted justification was a pretext for discrimination) that this fact meant there should be a strong showing that the test is discriminatory before those results can be discarded.

The United States as amicus argued that Title VII prohibits disparate impact and that this prohibition is essential to the statutory scheme. Chief Justice Roberts asked a question that mirrored the petitioners’ framing of the case “So, can you assure me that the government's position would be the same if this test -- black applicants -- firefighters scored highest on this test in disproportionate numbers, and the City said we don't like that result, we think there should be more whites on the fire department, and so we're going to throw the test out?” Counsel for the government identified the conflation, arguing that there were two separate justifications in the Chief Justice’s question: black firefighters scoring highest in disproportionate numbers (which presumably would be a legitimate reason for the City to question the test); and the motive to have more white firefighters promoted (which might be improper unless there is a compelling reason to promote more white firefighters and this mechanism was narrowly tailored to achieve that). Later in that argument, both Justice Scalia and the Chief Justice expressed skepticism that the government would be arguing the same thing if African American candidates had scored high disproportionately.

Justice Scalia suggested that he agreed in this situation that the disparate treatment and disparate impact provisions of Title VII were at war with one another.

Because the government argued that the belief that a neutral test discriminated in its operation had to be reasonable for it to be used as a defense to a disparate treatment claim, Justice Ginsburg asked what indicia of reasonableness there might be. Counsel for the government suggested a gross statistical disparity, evidence of problems with the job-relatedness of the test, and evidence that there are less discriminatory valid alternatives might be some.

Perhaps the comment most damaging to the respondents’ position was one made by Justice Kennedy, “Counsel, [the city] looked at the results, and it classified the successful and unsuccessful applicants by race. . . . and you want us to say this isn't race? I have -- I have trouble with this argument.” Chief Justice Roberts added, “It didn’t look at names; it just looked at the label of what their race was. That’s all they were concerned about.”

The Chief Justice got right to that point in the argument by counsel for respondents: “how do you draw the line between race-conscious that's permitted and racial discrimination that's not?” Counsel for respondents argued that because no one was treated differently on the basis of race (no African American was promoted while a white person was not) that there was no racial classification, at least in disparate treatment or equal protection terms.

In a line of questions about defenses if the Court were to find a racial classification and find that strict scrutiny applied, respondents agreed that they would have to have a strong basis in evidence that the test violated Title VII in order to have that be a compelling interest. There was also quite a bit of discussion on whether the test has to actually have violated the statute (in absolute terms), or whether it was enough that the defendants reasonably believed that it likely violated the statute.

One of the reasons that this case is so challenging and so divisive is that this case seems to be all about the framing of the issue. It is very difficult to separate that framing from the factual question of the parties’ subjective intent or the credibility question of whether to believe their assertions. The way that the facts and law get merged together make for a doctrinal mess. It seems like people talk past each other constantly.

I would have really appreciated someone on the respondents’ side addressing the so-called reverse discrimination argument head on to say, yes, if white firefighters scored disproportionately poorly as compared to African American and/or Latino firefighters, the City would not have engaged in a racial classification by noticing that and by holding hearings about certification. Upon hearing evidence that there may be alternative measures that would have less impact, or that the test may not be job-related enough, the City could refuse to certify, and that refusal would not be because of race within the meaning of either the Equal Protection Clause or Title VII.

Similarly, on the petitioners’ side, I would really have appreciated an explanation of where the line is between race conscious and racially discriminatory. Perhaps the answer would be that any race conscious decision should be considered discriminatory, which might be problematic under the Court’s jurisprudence, but at least that would address the issue head on. And the rhetoric of full colorblindness is what most people who agree with petitioners’ position seem to be using, labeling this as a reverse discrimination or affirmative action case.

I’m not going to make predictions on outcome because I’m never any good at that sort of thing, but I will make some limited conclusions. First, at least some of the Justices seem to believe that throwing the test out because of racially disparate results even with some evidence of potential alternatives with less impact is necessarily motivated by a desire to promote more people of the race that did disproportionately poorly. If enough of the Justices agree with that, a reversal of the Second Circuit is likely on the horizon. At the same time, some of the Justices seem to disagree with that automatic link and also seem to think that a reversal would put employers in an untenable position, violating Title VII no matter what they do. If enough Justices agree with that, an affirmance might be on the horizon. I think it’s safe to say that this will likely be a divided opinion, and it might be fractured enough on at least some points to produce more than the usual majority and dissent.

I also think it's safe to say as Justice Breyer noted, that this has the potential to be "a very far-reaching decision."

The D.C. Circuit yesterday overruled the Board in a case, holding that home delivery drivers for FedEx were independent contractors, not employees. The court's 2-1 decision in Fed Ex Home Delivery v. NLRB illustrated the complexity of the employee/independent contractor question that most readers are only too well aware of. What is particularly interesting about this case, however, was that the D.C. Circuit seems to be making a very strong push to alter the traditional Darden right-to-control test. Under the D.C. Circuit's reasoning, we may have to call it instead the "Entrepreneurial Opportunity" test. Although still taking into account the myriad of common-law Darden factors, the court put entrepreneurial opportunity above all.

I'm no fan of the right-to-control test, particularly given that it often betrays its roots as a vicarious liability analysis, rather than a test for employee or independent contractor. Pushing entrepreneurial opportunity is obviously one way around some of the problems with focusing on the right to control. That said, the D.C. Circuit's application of its test here--in particular, its reliance on potential entrepreneurial opportunity rather than actual opportunity--is troubling. If this test gets more legs, we're going to see a lot more corporate policies ostensibly allowing for entrepreneurial opportunity, even where such opportunity is virtually non-existent in reality.

The transcript from today's argument in Ricci v. DeStefano is up here. I've skimmed it enough to see that there's a lot there to digest more fully. My initial impression is that the court seemed to divide along familiar lines with Ginsburg, Souter, Stevens, and Breyer questioning the petitioners fairly heavily, and Roberts, Scalia, and Alito questioning the respondents closely. Kennedy questioned both sides about equally, and Thomas was characteristically quiet.

Most of the argument seemed to focus on whether the decision not to certify the test was race discrimination or simply racial consciousness and what kinds of evidence an employer would need to have before it could act in this manner.

I'll provide a more detailed analysis this evening, after I've had a chance to analyze it more closely.

The EEOC will hold a public meeting today at 10 a.m. EST, at agency headquarters in D.C., to address best practices to avoid discrimination against workers with caregiving responsibilities. The Commission is scheduled to hear from invited expert panelists on the importance of caregiver-friendly workplace policies in economic hard times. The panelists are:

Cynthia Calvert, Deputy Director, The Center for WorkLife Law

Karen Minatelli, Director of Work and Family Programs, National Partnership for Women and Families

Heather Boushey, Senior Economist, Center for American Progress

Jeff Norris, President, Equal Employment Advisory Council

Prior to the panel presentation, the EEOC Office of Legal Counsel will present a new document, Employer Best Practices for Workers with Caregiving Responsibilities. The new document, which will be released to the public at the meeting, will supplement formal guidance issued by the Commission in 2007 on how EEOC-enforced laws apply to employees with caregiving responsibilities.

The White House has announced that Cass Sunstein has been nominated to to be Administrator of the Office of Information and Regulatory Affairs, Office of Management and Budget. The office performs cost-benefit analyses of government regulation. The press release states:

President Obama said, "As one of America’s leading constitutional scholars, Cass Sunstein has distinguished himself in a range of fields, including administrative law and policy, environmental law, and behavioral economics. He is uniquely qualified to lead my Administration’s regulatory reform agenda at this crucial stage in our history. Cass is not only a valued advisor, he is a dear friend and I am proud to have him on my team."

The following nomination has been sent to the United States Senate:

Cass R. Sunstein, Administrator of the Office of Information and Regulatory Affairs, Office of Management and BudgetCass R. Sunstein is the Felix Frankfurter Professor of Law at Harvard Law School. A recipient of many honors and prizes, and author of hundreds of articles and numerous books, Sunstein is the most cited law professor on any faculty in the United States. Sunstein graduated in 1975 from Harvard College and in 1978 from Harvard Law School, both magna cum laude. After graduation, he clerked for Justice Benjamin Kaplan of the Massachusetts Supreme Judicial Court and Justice Thurgood Marshall of the U.S. Supreme Court, and then he worked as an attorney-advisor in the Office of the Legal Counsel of the U.S. Department of Justice. Before joining Harvard, he was a faculty member at the University of Chicago Law School from 1981 to 2008. Sunstein has testified before congressional committees on many subjects, and he has been involved in constitution-making and law reform activities in a number of nations. Sunstein has been Samuel Rubin Visiting Professor of Law at Columbia University and a visiting professor of law at Harvard. Sunstein’s many books include After the Rights Revolution (1990), Risk and Reason (2002), Laws of Fear: Beyond the Precautionary Principle (2005), Worst-Case Scenarios (2007), and Nudge: Improving Decisions about Health, Wealth, and Happiness (with Richard H. Thaler, 2008). He is also coauthor of leading casebooks in both Constitutional Law and Administrative Law; his major academic specialties have been constitutional law, administrative law, and regulatory policy.

This seems a very good fit in terms of expertise and a serious expansion in the "Six Degrees of Cass Sunstein" possibilities.

In anticipation of Wednesday's Supreme Court argument in Ricci v. DeStefano, several blogs have good summaries and postings up to preview the issues. Here's a collection of links:

Sarah Crawford from the Lawyer's Committee on Civil Rights under Law has this post at ACSBlog, calling this "a case that examines the ability of employers to safeguard equal
opportunity in employment testing. This important case marks the first
time in decades that the Court will examine a public employer’s
consideration of race in hiring or promotions."

David Muraskin, a student from Stanford has this post on Scotusblog, and notes that the Court’s decision has "the potential to fundamentally alter workplace civil rights protections."

Roger Clegg has this post at the National Review Online, asserting that the "City of New Haven threw out the
results of its firefighter-promotion exam because of its politically
incorrect results (too many whites, and not enough African Americans,
did well)." He also highlights "an internal inconsistency in Title VII: Over and
over again the statute says that employers must ignore race in making
employment decisions, and over and over again the statute says that
reliance on tests is perfectly fine and that racial balancing is not
what Congress has in mind — but then, . . . employers are
also told that if they ignore the racial results of a test (or other
selection device), they might be held liable, unless they can show that
the test is 'job related for the position in question and consistent
with business necessity.'”

Thanks to Symposium Co-Editor Patrick Murphy for passing along news of Connecticut Law Review's October 2009 symposium Redefining Work: Exploring the Legal Implications of the Four-Day Work Week. For more information, contact Patrick or his Co-Editor John Langmaid.

We posted a few months ago on a proposal at the Labor Law Blog to allow telephone and internet voting, as is permitted by the National Mediation Board. Echoing that proposal in a recent piece at Slate is Benjamin Sachs (Harvard), who also advocates a form of early voting, in which employees could vote anytime during a union organizing drive. His early voting proposal would apply both to elections using internet and telephone, as well as those using a more traditional voting site.

We reported, almost exactly two years ago, here and here about how employees manufacturing microwave popcorn are at risk for developing a severe lung disease from diacetyl. An article in yesterday's Cincinnati Enquirer indicates that Cincinnati has become the epicenter of popcorn-worker lawsuits, because many of the affected employees work at plants in nearby Marion and Carthage, Ohio. The former is owned by ConAgra, manufacturer of the popcorn pictured at left. The article explains:

The Givaudan plant in Carthage supplied [ConAgra] with butter flavoring, a product made with the chemical diacetyl. Breathing vapors from diacetyl and from the butter flavoring itself, can cause a severe lung injury called bronchiolitis obliterans. The disease is just what it sounds like: the smallest airways of the lungs, the bronchioli, are blocked, or obliterated, through scarring and inflammation. It can be disabling and even fatal.

Marcia has posted several times on Ricci v. DeStefano, the case pending before the Supreme Court involving promotions in the New Haven fire department. Recent posts are here and here and here. Yesterday's National Law Journal article has an in-depth article on the case: Justices to Rule on Bias Avoidance. The article quotes Marcia (left) and Paul Mollica (right) extensively:

"I would feel very torn in advising an employer right now," said employment law scholar Marcia McCormick of Samford University Cumberland School of Law. "As a practical matter, it seems employers can't win no matter what they do here."

But Ricci's argument is "unworkable," she said: "If recognizing race at all is discrimination, there is nothing an employer can do because anything it does is discrimination. Even surveying its own work force as to who is white, who is African-American, would become the roots of a discrimination claim."

"It also would cast some constitutional doubt on the disparate impact section of Title VII," he said. "In this case, they would be saying there are times that complying with that section would violate the other section. For private employers, it would create a sort of cognitive dissonance — what are we supposed to do?"

The Ninth Circuit last week, in Kastl v. Maricopa County Community College Dist., found that transgender employees claiming employment discrimination on that basis can state a sex stereotyping claim under Title VII. The case has been designated "not for publication", which seems odd given that it is a case of first impression in the Ninth Circuit. The court cited to Schwenk v. Hartford, 204 F.3d 1187 (9th Cir. 2000) (holding that a transgender prisoner can assert a claim under the Gender-Motivated Violence Act) and Smith v. City of Salem, Ohio, 378 F.3d 566 (6th Cir. 2004) (the first federal circuit decision holding that transgender discrimination is sex stereotyping under Title VII).